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Thursday, April 05, 2012

A GOLDEN OPENING

We all know what the golden rule is during trial: a party cannot ask the jury to place themselves in the situation of the defendant or victim- and then ask the jury how they would feel if so situated. (Lost in all the hoopla over self defense/stand your ground is the fact that not only is the golden rule not applicable to the defense, the defense must ask the jury to place themselves in the defendant's shoes, as the jury instructions require the jury to make such a finding as to the defendant's actions.)

We all know that Mr. Black recently lost a very difficult case in state court in West Palm Beach despite presenting an excellent defense. Mr. Black blogged about his opening statement here, and we reprint a portion of his post below. It is without a doubt a powerful, moving opening that one would expect from a master. However, the court apparently sustained objections about the opening statement.

Our simple question is this: isn't much of the power of the opening created through a "golden rule" violation? Should Mr. Black have been surprised that the prosecution would not sit by quietly while he masterfully placed the jury in the car in the driver's seat with his client?

You decide:

Here is the “first minute” of my opening argument:

“If you were standing on the side of 120th avenue at 12:45 am, you would have seen John’s car as it traveled down the street. As it gets close to the stop sign you can sense there is something wrong with the car.

If you looked into the car you see John trying to control a huge car with an enormously powerful engine that won’t react to orders of its computer. Unknown to John, the throttle control system is not working right. The throttles to this huge engine, 12 cylinders 560 horsepower, won’t close. It won’t stop the fuel coursing into the monster of an engine.

You see John trying to figure out what is happening and he panics trying to stop the car, but without success as it suddenly accelerates through the stop sign and into the intersection smashing into Scott Wilson’s Hyundai.

You see and feel the tremendous force of the collision. Smell the engines and the gas and the smoke. You hear the crushing of metal and the screeching of tires as both cars transition uncontrollably through the intersection. They are helpless passengers along for the ride, victims both of the immutable realities of physics: speed, force and distance.

You see John’s head slammed against the driver’s side window hard enough to shatter it. He falls unconscious.

The automobile in which Scott Wilson was driving, now separated from John Goodman’s car, is over the bank, and upside down in a canal; dark murky water, thick with vegetation, and the car all but invisible to human eye.

When John wakes he doesn’t know where he is. He can’t grasp what just happened. He can’t wrap his head around it. You can see him getting out of the car looking around trying to make sense of what happened. He looks but sees nothing. It is almost pitch black. What did he hit? He can’t see another vehicle.

He starts walking towards his house to find help but he is so disoriented and lost he goes in the wrong direction.

He has suffered a concussion, a broken right wrist, and a fractured sternum. His already damaged spine is far worse from the crash. You can see him try to walk. The pain in his legs causing him to wobble back and forth.

As he walks the full force of the pain hits him. For the next hour his only source of pain relief comes from a bottle of alcohol. It deadens the pain.

You will hear from eye witnesses, experts and exhibits:

John Goodman was not drunk or intoxicated at the time of the collision. He simply had not consumed enough alcohol prior to the accident to put him anywhere close.

His car was defective causing sudden acceleration.

He suffered a grade 3 concussion causing confusion and disorientation.

He couldn’t see anyone to render aid to.

He left his passport and driver’s license in the car and was not attempting to flee.

Under the circumstances it was reasonable to look for help rather than stand on a dark deserted street.

This was a tragedy. A young man died. But this was an accident not a crime.

It is this tragic automobile accident that brings us together in this courtroom.

Now let me take you back 7 hours before the accident:”

I thought a good way to involve the jury in the opening was to let them see, feel and hear the accident for themselves. At least that was my idea going in. Unfortunately the judge sustained objections to that and I had to edit on the fly. The judge was very restrictive in his rulings and it made it much more difficult to be an effective advocate. I found myself self-limiting what I said during the trial in order to circumvent objections and avoid annoying sidebar conferences which interrupted the flow of the arguments. Judges seem to prefer a streamlined case without any real advocacy by the lawyers...

15 comments:

GD
said...

John Rawls, writing about systemic social inequality, used the example of a "veil of ignorance". As a thought experiment, he writes, readers ought to imagine themselves constructing a social system from behind this veil, not knowing if they will be one of the worst-off or best-off members. From such a position of objectivity, he argued, the fairest system will be created.

I guess that's how I understand the Golden Rule objection -- jurors ought to be deciding based on cold impartiality, not imagining themselves one of the interested parties. Not knowing who they would be.

The problem is, both the objection and Rawls's veil are nonsense. *Why* engage in his thought experiment? *Why* go under the veil? You'd only do this if you have prior moral commitments -- I want a fairer outcome, so let me pretend to this starting point where I want nothing. I'm partial to justice, so let me pretend to impartiality.

The golden rule objection is philosophically unsound, as far as Im concerned. Good advocacy ought to inviting jurors into the partial, subjective "shoes" of the defendant/victim as much as possible. And good lawyers do, despite the rule. I don't know its legal history, but it ought to be tossed aside.

I don't see this opening as a Golden Rule violation. Black didn't ask the jurors to place themselves in the Defendant's shoes, he asked them to visualize what the Defendant saw. Two very different things.

Rumpole, very little outrage -- or even notice -- here about Florence v. Board of Chosen Freeholders, which sanctioned full strip and cavity searches for anyone taken to jail, irrespective of the reason, without reference to PC of any sort.

Given that in many states ANY infraction or citation is "arrestable," and given the recent federal law criminalizing many protests or demonstrations on federal property (see, Federal Restricted Buildings and Grounds Improvement Act of 2011), Florence should be seen for what it is: Another tool by which the authorities can deter, humiliate and punish anyone they wish, whenever they wish to do so.

But then the frog is being boiled nice and slowly, while being distracted by the dumb show of two-party politics, so no surprise, I suppose that no one raised much of a fuss.

10:23 A.M. I clearly do not like the idea of strip-searching folks for misdemeanors, but how can you control the introduction of drugs and perhaps weapons without doing so. I have never had a criminal defendant tell me that he was treated badly or disrespectfully or publicly during a srip search. I don't like it, but I think if C.O.s think it is necessary, I find it hard to second guess them. Actually, in New York City, I believe they cavity search inmates at Rikers. Talk about an indignation!

11:12 am I disagree. When Roy said "if you were standing....you would have seen" He was putting the jurors at the scene ostensibly in his client's place. I think the opening as written was superb but I understand why the judge sustained the objection. And remember we are reviewing this from an academic standpoint and not right in the middle of battle.

I suggest a simple change" substitute "we" for "you" and it reads "if we were standing...we would see" and as Roy did that if he pointed to the prosecution table it would be mitigating the potential golden rule implications.

Again, this is the benefit of time and reflection and I am not criticizing Mr. Black in any way. He tried a great great case and hopefully he gets another chance.

Catalano: you are a frenetic, ADHD , agent provocateur. I read a load of emails from you about the gyrations you engage in to get a simple video from a DUI case. Who gives a crap that the tub of lard at FHP liaison is a "real nice guy".

Send a fricking discovery request to the state and make them give you the fricking tape. Or, send a frickin 119 request to FHP records custodian and have them held in contempt when they don't comply. Geez, Louise.

Holy Moly! Who's advising Coppel??? Don't they know you can loan you're campaign as much money as you want, but you cannot CONTRIBUTE more than $500 to yourself? Schmuck. His opponent is the luckiest guy in the world.